McMullin v. Mississippi Department of Public Safety et al

Filing 113

ORDER granting in part and denying in part 66 Motion to Dismiss Signed by District Judge Henry T. Wingate on 4/13/2020 (nd)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
GAYLE MILLER MCMULLIN
vs.

PLAINTIFF
CIVIL ACTION No.: 3:17-CV-95-HTW-LRA

MISSISSIPPI DEPARTMENT OF
PUBLIC SAFETY;
MARSHALL FISHER, in his official
Capacity as Commissioner of the
MISSISSIPPI DEPARTMENT OF
PUBLIC SAFETY; and
CHRIS GILLARD, in his official
Capacity as Colonel for the
MISSISSIPPI DEPARTMENT OF
PUBLIC SAFETY

DEFENDANTS
ORDER

BEFORE THIS COURT is the Motion to Dismiss [Docket no. 66] filed by Defendants,
Mississippi Department of Public Safety (“MDPS”), Commissioner Marshall Fisher in his official
capacity, and Colonel Chris Gillard in his official capacity (hereinafter collectively referred to as
“Defendants”). Plaintiff Gayle Miller McMullin (hereinafter “Plaintiff”) opposes Defendants’
motion. [Docket no. 74]. The Defendants have filed a rebuttal brief [Docket no. 79], and the matter
is ready for review. By their motion, Defendants campaign for dismissal of Plaintiff’s claims
under 42 U.S.C. § 1983 and 42 U.S.C. § 1985. For the reasons stated herein, Defendants’ Motion
to Dismiss [Docket no. 66] is GRANTED IN PART and DENIED IN PART.
I.

PROCEDURAL FACTS AND BACKGROUND

Plaintiff’s First Supplemental Complaint [Docket no. 36] alleges: racial discrimination in
employment in violation of Title VII of the Civil Rights Act of 1964 (as amended) 1;

1

Title 42 U.S.C. § 2000e-2(a) provides: “[i]t shall be an unlawful employment practice for an employer -(1) to fail
or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to

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First Amendment violations pursuant to Title 42 U.S.C. § 1983 2 ; and conspiracy pursuant to Title
24 U.S.C. § 1985(2) 3. This Court has subject matter jurisdiction under Title 28 U.S.C. § 1331 4,
because Plaintiff urges her claims under federal law 5.
Plaintiff’s Complaint seeks to enforce the settlement terms of a prior lawsuit 6, wherein
Plaintiff sued MDPS and the Commissioner of MDPS on the grounds of racial discrimination. As
part of the Settlement Agreement (hereinafter “The Settlement”) in the prior lawsuit, MDPS agreed
to promote Plaintiff, then carrying the rank of Lieutenant, to Captain and Director of Training for
the Mississippi Highway Patrol. In exchange for her promotion and other covenants, Plaintiff
agreed to dismiss her initial lawsuit and release Defendants MDPS and Albert Santa Cruz, in his
official capacity, from all claims filed against them in her initial lawsuit. Plaintiff now alleges
that the Defendants have failed to comply with the terms of The Settlement. Plaintiff further
alleges that Defendants continue to discriminate and retaliate against her for filing the initial
lawsuit and obtaining The Settlement and promotion.

his compensation, terms, or conditions, or privileges of employment, because of such individual's race, color,
religion, sex, or national origin; ... .”
2

Section 1983 provides, in pertinent part, “[e]very person who, under color of [state law], subjects . . . any citizen . .
thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable
to the party injured.”
3

Section 1985(2) states in relevant part that an injured or deprived party may have a cause of action “ [i]f two or
more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any
court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully,
and truthfully…”
4

Title 28 U.S.C. provides: “The district court shall have original jurisdiction of all civil cases arising under the
Constitution, laws, or treaties of the United States.”

5

In her response to Defendants’ Motion to Dismiss, Plaintiff concedes that she is only seeking Title VII damages
from MDPS, and that no damages are sought against the individual defendants, Marshall Fisher or Chris Gilliard in
their official capacities [See Docket no. 74].
6

The Court in Gayle Miller McMullin vs. Mississippi Department of Public Safety and Albert Santa Cruz, in his
official capacity as Commissioner of the Mississippi Department of Public Safety, Civil Action No. 3:13-cv-68CWR-FKB retained jurisdiction to enforce the Settlement Agreement and Release [See Docket no. 63].

2

Defendants timely filed their answer and affirmative defenses to Plaintiff’s Complaint
[Docket no. 37]. Defendants have filed this present motion for partial dismissal, asserting Eleventh
Amendment immunity for claims pursuant to §1983 and §1985.
Defendants also urge this Court to dismiss Plaintiff’s § 1985(2) claims for failure to allege a
sufficient factual basis for her claim of conspiracy.
II.

LEGAL STANDARD

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A claim is factually plausible if the complaint contains
factual allegations that “allow the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. This does not require a showing that the defendant is probably
liable, but “it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. To
meet this plausibility standard, the complaint must contain more than “threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements.” Id.
III.

DISCUSSION

a. Eleventh Amendment Immunity
The Eleventh Amendment to the United States Constitution 7 prohibits suits against nonconsenting states by their own citizens, by citizens of another state, by citizens of foreign states,
or by a foreign nation. Principality of Monaco v. Mississippi, 292 U.S. 313, 329–331, 54 S.Ct.
745, 750–751, 78 L.Ed. 1282 (1934); Hughes v. Savell, 902 F.2d 376, 377 (5th Cir.1990).

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AMENDMENT XI—SUITS AGAINST STATES
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign
State.

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This Court is under an initial obligation to review the allegations of Plaintiff’s Complaint
to determine if the Court’s jurisdiction over the suit is barred by the Eleventh Amendment.
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121, 79 L.Ed.2d 67, 104 S. Ct. 900, 52
U.S.L.W. 4155 (1984). The Eleventh Amendment is an “explicit limitation” on the jurisdiction of
the Court and serves as “a specific constitutional bar against hearing even federal claims that
otherwise would be within the jurisdiction of the federal courts.” Pennhurst II, 465 U.S. at 119120, 104 S.Ct. at 906–918. Further, the Eleventh Amendment bar is not limited to suits seeking
monetary relief, it may also bar suits seeking equitable relief. Cory v. White, 457 U.S. 85, 90–91,
102 S.Ct. 2325, 2328–2329, 72 L.Ed.2d 694 (1982).
The Eleventh Amendment applies both to states and their alter egos. Voisin's Oyster House
v. Guidry, 799 F.2d 183, 185 (5th Cir.1986). Whether an entity is covered by a state's Eleventh
Amendment immunity turns on the entity's (1) status under state statutes and case law, (2) funding,
(3) local autonomy, (4) concern with local or statewide problems, (5) ability to sue in its own
name, and (6) right to hold and use property. Hudson v. City of New Orleans, 174 F.3d 677, 681
(5th Cir.1999). Funding is most important. Id., at 681-82. See Champagne v. Jefferson Parish
Sheriff's Office, 188 F.3d 312, 313 (5th Cir. 1999).
In the instant case, MDPS was created by the State legislature, as an arm of the State of
Mississippi. See Miss. Code Ann § 41-1-2 et seq. MPDS is funded by the State of Mississippi to
the extent that it cannot cover its expenses without the property and resources granted to it by the
State of Mississippi. "[B]ecause an important goal of the Eleventh Amendment is the protection
of states' treasuries, the most significant factor in assessing an entity's status is whether a judgment
against it will be paid with state funds." McDonald v. Board of Miss. Levee Comm'rs, 832 F.2d

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901, 907 (5th Cir. 1987). Any judgment sub judice against the MDPS would be paid by the State
of Mississippi.
b. Application of the Eleventh Amendment to Section 1983 Claims
The grant of immunity under the Eleventh Amendment extends to claims against a State
brought pursuant to 42 U.S.C.§ 1983. See Aguilar v. Texas Dept. of Crim. J., 160 F.3d 1052, 1054
(5th Cir. 1998) (referencing Farias v. Bexar County Bd. of Trustees for Mental Health Mental
Retardation Servs., 925 F. 2d 866, 875 n. 9 (5th Cir. 1991). Section 1983 creates a cause of action
against a “person” who, under color of [law…] subjects […] any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws […](emphasis added) 8.The Supreme Court has
ruled that a State is not a “person” within the meaning of § 1983. Will v. Michigan Department of
State Police, 491 U.S. 58 (1989). MDPS, as an arm of the State of Mississippi, is not a “person”
under § 1983; accordingly, Plaintiff’s Complaint fails to state a claim under § 1983 against MDPS,
and these claims are dismissed.
The Eleventh Amendment also bars a suit against an individual state official if "the state
is the real party in interest." Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355, 39
L.Ed.2d 662 (1974)(citations omitted). The United States Supreme Court has held that official
suits cannot be maintained against state officers acting in their official capacity on behalf of the
state. See Hafer v. Melo, 502 U.S. 21, 27, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (state officers
sued for damages in their official capacity are not “persons” for purposes of the suit because they
assume the identity of the government that employs them)(citing Will v. Michigan Dept. of State
Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989)). A suit against a state official is

8

See Footnote 2.

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no different from a suit against the state itself. Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099,
3104–05, 87 L.Ed.2d 114 (1985); Monell v. New York City Department of Social Services, 436
U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Therefore, a state official is also immune from
suit under § 1983.
c. Exceptions to the Eleventh Amendment
The Supreme Court has carved out three recognized exceptions to Eleventh Amendment
sovereign immunity: (1) a state’s waiver of immunity and consent to be suit. Idaho v. Coeur
d’Alene Tribe, 521 U.S. 261, 267, 117 S. Ct. 2028, 138 L.Ed. 438 (1997); (2) Congress’s
abrogation of state immunity via § 5 of the Fourteenth Amendment 9. Quern v. Jordan, 440 U.S.
332, 345, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979); and (3) suits seeking specific equitable relief
from state officials under the landmark decision of Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441,
52 L.Ed. 714 (1908).
In the case at bar, § 5 of the Fourteenth Amendment cannot possibly apply to this lawsuit;
the State of Mississippi and MDPS have not waived their protection from suit; and § 1983 does
not abrogate Eleventh Amendment immunity, as no provision of the statute authorizes private suits
for damages against the States. Will v. Michigan Dept. of State Police, 491 U.S.at 58. Plaintiff,
therefore, looks to the doctrine of Ex Parte Young to pierce the Defendants’ Eleventh Amendment
defense.

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U.S. Const. Amend. XIV, § 5 states: “The Congress shall have power to enforce, by appropriate legislation, the
provisions of this article.” This power of Congress under § 5 of the Fourteenth Amendment to enforce the provisions
of the Amendment includes the power to abrogate state sovereign immunity by authorizing private suits for damages
against the States for violations of the Amendment. U.S. v. Georgia, 546 U.S. 151 (2006).

6

The Court in Ex Parte Young established the principle that the Eleventh Amendment does
not bar a suit in federal court when the suit is brought to enjoin a state officer’s enforcement of an
allegedly unconstitutional state law. See American Bank & Trust Co. of Opelousas v. Dent, 982
F.2d 917, 920–21 (5th Cir.1993). The Court reasoned that enforcement of an unconstitutional law
is not an official act because a state cannot confer authority on its officers to violate the
Constitution or federal law. Id. To meet the Ex Parte Young exception, a plaintiff's suit alleging a
violation of federal law must be brought against: (a) individual persons; (b) in their official
capacities as agents of the state, and; (3) where the relief sought is declaratory or injunctive in
nature and prospective in effect. See Saltz v. Tennessee Dep't of Employment Sec., 976 F.2d 966,
968 (5th Cir.1992).
Prepared for a ruling dismissing MDPS under the doctrine of sovereign immunity, Plaintiff
shifts her focus to her § 1983 claims for injunctive relief against the individual state officials in
their official capacities 10. Under the reasoning of Ex Parte Young, argues Plaintiff, those individual
defendants herein are properly sued in their individual capacities as agents of MDPS. Although
MDPS, she adds, as an instrumentality of the State of Mississippi may be immune from Plaintiff’s
suit, Plaintiff’s § 1983 claims for prospective relief against the official capacity Defendants are not
protected.
This Court agrees. The Fifth Circuit’s ruling in Saltz explains that suits seeking to enjoin
“wrongful and unauthorized acts are not suits against the state and a federal courts’ injunction
against such wrongful acts is not a judgment against the state itself.” Id at 968. Accordingly, this
Court concludes that Plaintiff’s § 1983 claims against Defendants Marshall Fisher and Colonel

10

Plaintiff, in her opposition brief [Docket no. 74] concedes that she is not making any clams for monetary damages
against the individual defendants pursuant to § 1983.

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Gilliard seeking injunctive relief as a remedy for those defendants’ alleged violation of her
constitutional rights are not dismissed from this suit.
d. Section 1985 Claims
Plaintiff also asserts claims based upon a violation of Title 42 U.S.C. § 1985(2) 11. Section
1985 creates a cause of action against “persons” who conspire. As stated above, the definition of
“person” does not include divisions of a state, which are protected from suits by the Eleventh
Amendment; accordingly, all claims against MPDS under §1985 are dismissed.
The Fifth Circuit also has held that under the intracorporate conspiracy doctrine, employees
of an entity are not considered to be “persons” separate from such entity for conspiracy purposes.
Hilliard v. Ferguson, 30 F.3d 649, 653 (5th Cir. 1994). The Court went on to expound that just as
employees of a corporation cannot conspire together, employees of the same agency cannot
conspire together. Id. When an individual acts for his own purposes rather than for a corporation
or other entity, however, he becomes an independent actor who can conspire with a corporation or
governmental agency. Dussoy v. Gulf Coast Investment Corp., 660 F.2d 594, 603 (5th Cir. 1981).
In the present case, Plaintiff’s Complaint fails to allege any facts suggesting that any of the
individual defendants were acting for their own personal purposes rather than in the course of their
employment with MDPS; therefore, Plaintiff’s claims against the individual defendants under
§1985(2) are also hereby dismissed.

11

See Footnote 3.

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IV.

CONCLUSION

For the aforementioned reasons, Defendant’s Motion to Dismiss [Docket no. 66] is hereby
GRANTED IN PART.
IT IS ORDERED that Plaintiff’s §1983 and §1985 claims against Defendant Mississippi
Department of Public Safety are hereby DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff’s §1983 claims against Defendant
Commissioner Marshall Fisher in his official capacity, and Defendant Colonel Chris Gillard in his
official capacity are NOT DISMISSED. Plaintiff may proceed against these defendants only in
connection with Plaintiff’s effort to obtain declaratory or injunctive relief.
IT IS FINALLY ORDERED that Plaintiff’s §1985(2) claims against Defendant
Commissioner Marshall Fisher in his official capacity, and Defendant Colonel Chris Gillard in his
official capacity are DISMISSED WITH PREJUDICE.
SO ORDERED this the 13th day of April, 2020.

/s/HENRY T. WINGATE
UNITED STATES DISTRICT COUT JUDGE

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